The coup d'etat and the Fiji Human Rights Commission

The report of the Fiji Human Rights Commission (‘the Commission’), ‘The Assumption of Executive Authority on December 5th 2006 by Commodore J.V. Bainimarama, Commander of the Republic of Fiji Military Forces: Legal, Constitutional and Human Rights Issues’, is a remarkable apology for the military regime in Fiji. There are two elements in it that lead to this conclusion. The first (which has two parts) is the assertion that: The RFMF overthrew an illegally constituted, unconstitutional Government which was acting against the public interest in violation of public security and public safety protections in the Constitution.This amounts not only to a condemnation of the previous (civilian) government as illegal, but also to an endorsement of a political role for the Republic of Fiji Military Forces (RFMF). The second element is the assertion that the overthrow of the government was not merely in the interests of the country, but was legal, under the doctrine of necessity. Both of these arguments are contentious. The first because it is not the role of the military to act as a political arbiter – it is for the courts to decide if a government acts improperly or illegally (or indeed is illegally or irregularly constituted); the second because, while the doctrine of necessity provides limited legal justification for certain acts in defence of the constitutional order or the stability of a country, it does not allow for military coups against de facto or de jure governments. The failure of the Commission to criticise the coup – indeed its endorsement of it – is a dangerous development in an already difficult situation fraught with risk to the future stability of civil society. If the Commission cannot bring itself to champion the paramountcy of the rule of law, and instead encourages the military to adopt an active political role, then the constitution of the country is in serious, and probably long-term, trouble.